Opinion
No. 1-15-1959
08-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRERACIO WILLIAMS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County,
No. 10 CR 17944
Honorable Stanley J. Sacks, Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court.
Justices Howse and Burke concurred in the judgment.
ORDER
¶ 1 Held: Trial court did not err in summarily dismissing defendant's postconviction petition, where his ineffective assistance of counsel claim was frivolous and patently without merit.
¶ 2 Pursuant to a 2013 negotiated guilty plea, defendant Preracio Williams was convicted of first degree murder and sentenced to 23 years' imprisonment. Defendant now appeals from the summary dismissal of his 2015 postconviction petition, contending that it stated the gist of a meritorious claim of ineffective assistance of counsel. For the reasons stated below, we affirm.
¶ 3 Defendant and codefendant, Jason Foster, were charged with various offenses, including attempted armed robbery, attempted first degree murder, aggravated discharge of a firearm and burglary, related to the June 8, 2010 attempted armed robbery of a pawn shop located at 5900 West Fullerton in Chicago. Defendant and Foster were also charged with first-degree felony murder, in that, while committing the above offenses, "they set in motion a chain of events that caused the death of Michael McMillion." Following the indictment, the State tendered discovery, which included a DVD surveillance recording showing Foster firing two gun shots during the offense, and the owner of the pawn shop returning fire in defense, striking and killing defendant and Foster's co-offender, McMillion.
¶ 4 In November 2011, Foster successfully moved for severance of his trial from defendant's due to antagonistic defenses. Defendant changed counsel in May 2012, and, on May 15, 2013, the parties told the court that defendant rejected a 23-year plea offer for first degree murder. Defendant confirmed that he was rejecting the offer. The trial court scheduled the jury selection for defendant's trial on August 9, 2013.
¶ 5 On that date, the parties returned and informed the court that defendant had chosen to accept the State's plea offer of 23 years for first degree murder. Defendant signed written waivers of his right to a jury trial and to a presentencing investigation report (PSI). The court learned from defendant that he was 26 years old and had attended but not completed high school. The court read defendant the first degree murder charge and informed him of the sentencing range for first degree murder, including that the maximum prison sentence is 60 years. The court described defendant's rights to a jury trial and a bench trial, and defendant replied that he understood and waived those rights. Defendant acknowledged that he still wanted to plead guilty,
that he had not been subjected to force or threats to induce his plea, and that he was pleading freely and voluntarily.
¶ 6 The court then heard the factual basis for the plea from the State. The State asserted that, if he went to trial, the evidence would show that on June 8, 2010, defendant, Foster and McMillion entered the pawnshop located at 5900 West Fullerton. While in the pawn shop, defendant, Foster and McMillion "committed the offense of attempt armed robbery with a dangerous weapon *** and during the commission of that offense they set in motion a chain of events that caused the death of Michael McMillion." Defense counsel stipulated to the factual basis for the plea.
¶ 7 The court found that defendant understood the nature of his charge and the consequences of pleading, and had agreed to the factual basis. The State informed the court that defendant had prior convictions for a Class 1 felony controlled substance offense in 2004 and for unlawful use of a weapon by a felon in 2007. The court explained defendant's right to a PSI, and defendant confirmed his waiver of that right. The charges other than first degree murder were nol-prossed. The court explained to defendant his appeal rights and gave him an opportunity to address the court, which he declined. The court then sentenced him, as agreed, to 23 years' imprisonment.
¶ 8 Defendant did not file a motion to withdraw his guilty plea or a direct appeal.
¶ 9 In February 2015, defendant filed his pro se postconviction petition. He alleged ineffective assistance of counsel for failure to obtain readily available evidence of other suspects involvement, to conduct a reasonable investigation by interviewing and subpoenaing witnesses, and to present a compulsion defense. He alleged that he and his mother Dorothy Williams told counsel that he "was being compelled to commit robbery which lead to the death of Michael McMillion" and thus counsel was ineffective for not presenting a compulsion defense and not
subpoenaing Dorothy as a witness to support that defense. Defendant also claimed that he asked counsel to interview Foster and thus counsel did not perform a reasonable investigation because he did not do so. Defendant alleged that counsel "coerce[d]" him on August 8, 2013, to plead guilty the next day "by telling him he would get 75 years in prison if he did not plead guilty, because compulsion was not a legal defense."
¶ 10 Attached to the petition were the affidavits of defendant, Foster, and Dorothy. Defendant averred that he told counsel on August 7, 2013, two days before trial, to interview Foster, and reiterated that he was compelled to commit armed robbery. When counsel returned the next day, he told defendant that compulsion is not a defense to felony murder. Defendant stated that counsel "coerced [him] to plea[d] guilty" by telling him that he would be convicted in a trial and would "receive the maximum of 75 years in prison" and "that the State's Attorney agreed with [counsel] to give [defendant] 23 years at 100% if [he] pled guilty to first degree felony murder."
¶ 11 Dorothy averred that she met with counsel in May 2012 and "explained in vivid detail *** that [her] son was being forced and compelled to commit the offense of felony murder." She alleged that defendant asked her for $15,000 and seemed "so worried" about it when she refused. As defendant left, she saw Foster "force him into a car." She called out to defendant, who replied that he would call her later. After his arrest, defendant told her why he needed the money; she did not aver what that need was. She averred that she told this to counsel, who "promised that *** he would get the charges dismissed because according to the law [defendant] was not accountable for his codefendant's murder." Instead, counsel "convinced" defendant to accept a plea offer "to even more time than the previous offer."
¶ 12 Defendant also attached an affidavit from Foster, dated December 12, 2014. Foster averred that he and McMillion had demanded $15,000 from defendant for bond for McMillion's
cousin, because they blamed defendant for the cousin's arrest. When defendant told them that he could not raise that sum, they told him that they would kill him if he did not join in their planned robbery, and defendant had "fear in [his] eyes." Foster did not describe when these demands and threats occurred. Foster admitted that he became willing to disclose this information only after he had accepted McMillion's death (which "had filled me with lots of pain and regret") and "found God."
¶ 13 On May 7, 2015, the court summarily dismissed the petition. The court found that defendant entered a knowing and voluntary guilty plea in exchange for a negotiated sentence close to the minimum 20-year sentence. The court found that its plea admonishment - that the maximum sentence for first degree murder is 60 years - belied or refuted defendant's allegation that counsel told him the maximum sentence was 75 years. The court also found that the affidavits of defendant, Foster and Dorothy did not establish a legal defense of compulsion. Compulsion consists of the threat of imminent death or great bodily harm, and the affidavits did not establish when Foster made the averred threat to defendant, the court found.
¶ 14 On appeal, defendant contends that the summary dismissal of his petition was erroneous because it stated the gist of a meritorious claim of ineffective assistance of counsel.
¶ 15 A postconviction petition may be summarily dismissed within 90 days of its filing if "the court determines the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a) (West 2014). A petition may be summarily dismissed at this first stage of proceedings if it has no arguable basis in law or fact because it relies on an indisputably meritless legal theory or a fanciful factual allegation, or it is substantially incomplete because it does not include objective or independent corroboration of its allegations. People v. Allen, 2015 IL 113135, ¶¶ 24-26. At this stage, documented factual allegations are construed liberally and accepted as true unless
affirmatively refuted by the record. Id., ¶ 25-26. We review de novo the summary dismissal of a postconviction petition. Id., ¶ 19.
¶ 16 A first-stage petition claiming ineffective assistance of counsel must establish that it is arguable that (1) counsel's performance was objectively unreasonable, and (2) the defendant was prejudiced by counsel's performance. People v. Shief, 2016 IL App (1st) 141022, ¶ 56.
¶ 17 Here, we may first dispose of the most obvious aspect of defendant's petition: there is no arguable merit to his claim of ineffectiveness for counsel not interviewing Foster. Foster's trial was severed from defendant's due to antagonistic defenses well before counsel at issue began representing defendant, and it was scheduled to commence after defendant's trial date (which became his plea hearing). It was exceedingly unlikely at best that Foster's counsel would have allowed defendant's counsel to interview Foster before either trial. Foster's averment that he would not have been forthcoming before his religious experience and acceptance of McMillion's death corroborates that conclusion.
¶ 18 In his petition, defendant contends that he pled guilty because counsel advised him that compulsion is not a legal defense to felony murder, and we accept these allegations as true at this stage in the post conviction proceedings. As a result, we will consider whether defendant has an arguably meritorious claim based on the erroneous advice of counsel. Defendant, however, would not have an arguably meritorious claim if the advice that allegedly prompted his plea was correct.
¶ 19 Under the affirmative defense of compulsion, a defendant is not guilty of a non-capital offense "by reason of conduct that he or she performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he or she reasonably believes death or great bodily harm will be inflicted upon him or her *** if he or she does not perform that
conduct." 720 ILCS 5/7-11(a); 7-14 (West 2014). Compulsion is generally not a defense to first degree murder but is a defense to felony murder, because compulsion is a defense to armed robbery, and a defendant cannot be guilty of felony murder if he was compelled to commit the underlying felony. People v. Sims, 374 Ill. App. 3d 231, 267 (2007); People v. Serrano, 286 Ill. App. 3d 485, 490-91 (1997). A defendant claiming compulsion must show that he was under an imminent threat of death or great bodily harm and a demand that he perform the specific criminal act with which he was later charged. People v. Jackson, 2016 IL App (1st) 133823, ¶ 40.
¶ 20 Here, we agree with defendant that compulsion can be a legal defense to felony murder based on armed robbery. However, an imminent threat is an element of compulsion, and counsel could correctly advise defendant that compulsion was not a valid legal defense in his case if imminence was absent in his case. Defendant's affidavits in support of his petition purport to show that Foster and McMillion threatened to kill defendant if he did not join their robbery scheme. However, nowhere in defendant's petition and affidavits does he establish when this threat was made in relation to the incident at the pawnshop. Moreover, in Dorothy's affidavit, she averred that defendant replied that he would call her later as he was getting into the car, which would tend to cast doubt on a claim that he was under an imminent threat of death or great bodily harm. In these circumstances, we conclude that defendant has failed to show in his petition with factual rather than conclusory allegations that counsel's advice, allegedly causing him to accept the plea offer, was erroneous.
¶ 21 Defendant relies, almost exclusively, on Sims, 374 Ill. App. 3d 231 (2007), to contend that a counsel's failure to give due regard to a defendant's compulsion defense constitutes ineffective assistance of counsel. However, we find Sims distinguishable from the case at bar. In Sims, a codefendant testified that, before they got into the car to commit the robbery, the 15
year-old defendant, who was to act as a lookout during the offense, told his co-offenders he did not want to take part. The ringleader of the offense, with a gun in hand, "told defendant that 'he was there when it started, he got to be there when it finished.' " Sims, 374 Ill. App. 3d at 235. The codefendant testified that the ringleader's conduct was menacing, and that "we all kn[e]w what it mean[t]." The codefendant additionally testified that none of the participants ever saw the defendant carrying out his role of being a lookout. Sims, 374 Ill. App. 3d at 236.
¶ 22 As the above testimony was being elicited, the trial court called a recess to inquire of defense counsel whether he "was attempting to raise an affirmative defense of compulsion without having pled it." Sims, 374 Ill. App. 3d at 235. Defense counsel conceded that he made a " 'mistake by not filing or asking to file a compulsion defense.' " Sims, 374 Ill. App. 3d at 235. The trial court allowed counsel to pursue the line of questioning, and stated that it would "deal with the issue and arguments and defense instructions later." Counsel, however, never submitted a compulsion instruction.
¶ 23 On direct appeal, the appellate court found that there was sufficient evidence presented to warrant a compulsion instruction, and that the failure to tender that instruction constituted ineffective assistance of counsel, which if prejudicial, required reversal. The reviewing court then found the prejudice prong had been satisfied because (1) the evidence was "close" (2) the State's forensic-pathology expert's testimony had been rejected by a different jury in the trial of a codefendant; and (3) the defendant was 15 years old at the time of the offense, he resided with an adult codefendant, and he was just the " 'lookout.' " Sims, 374 Ill. App. 3d at 269.
¶ 24 This case, by contrast, arises in the post-conviction context following a guilty plea, not a direct appeal of a jury conviction like in Sims. Moreover, defendant here has not provided any evidence which would establish when the alleged threat was made in relation to the incident at
the pawnshop, which would support a claim of imminence. In Sims by contrast, there was evidence that the adult codefendant, gun in hand, threatened the juvenile defendant, immediately preceding the offense, when the defendant attempted to back out. Finally, as described above, there is nothing in this case to show that counsel's advice to defendant was erroneous, whereas in Sims, counsel admitted to making a mistake in failing to file a compulsion defense, and then never followed through on ensuring that the jury was instructed appropriately.
¶ 25 The only other case that defendant cites in support is People v. Serrano, 286 Ill. App. 3d 485 (1997). At the defendant's trial in Serrano, he did not dispute that he was present during the armed robbery that resulted in the death of the victim, but contended that he was compelled through fear to do it. Serrano, 286 Ill. App. 3d at 492. Both defendant and his accomplice testified that he was forced to perform the acts at gunpoint, and defendant stated that he did not tell the police afterward because he was told he and his family would be harmed if he did so. It was also undisputed at trial that that both men with defendant had guns but defendant did not. Despite the above evidence, defense counsel failed to tender an instruction on compulsion as a defense. During deliberations, the jury sent a note to the court asking whether the defendant was "legally responsible for these crimes if he was forced into these actions[.]" However, before the court could reply, the jury returned a guilty verdict. Serrano, 286 Ill. App. 3d at 489.
¶ 26 The Serrano court found, in the above circumstances, that where defense counsel argued a theory of defense but failed to offer an instruction on that theory, "the failure cannot be called trial strategy and is evidence of ineffective assistance of counsel." Serrano, 286 Ill. App. 3d at 492. The court also found that the error was not harmless. Although the State's evidence was sufficient to support the defendant's conviction, properly instructed jurors could have been
persuaded by the above evidence to conclude that the defendant "was compelled to do this crime." Serrano, 286 Ill. App. 3d at 492-93.
¶ 27 In Serrano, there was evidence presented showing that the defendant and his family were threatened before, during and after the offense, and that both codefendants carried guns and defendant did not. Moreover, the defendant in Serrano relied, exclusively, on a compulsion defense, however defense counsel failed to request that the appropriate instructions by presented to the jury. As stated previously, in this case, defendant has failed to provide any evidence establishing when the alleged threat was made. In these circumstances, we conclude that defendant's claim of ineffective assistance of counsel is frivolous and patently without merit, and we thus find no error in the circuit court's summary dismissal.
¶ 28 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 29 Affirmed.